The Kolkata Bench of the Custom, Excise and Service Tax Appellate Tribunal (CESTAT), upheld the service tax demand on no proof of payment of service tax to ONGC under commercial or industrial construction service.
A show cause notice was issued to the appellant, Sri Mridul Phukan, alleging that the appellant neither registered as service tax assessee nor paid service tax as they have provided taxable service to M/s ONGC under the category of ‘commercial or industrial construction service’ during the period 01.04.2005 to 31.05.2006.
A communication was made by the respondent to the management of M/s. ONGC requesting them to submit the details of list of service providers who have rendered service to them under the category of ‘commercial & industrial construction service’ during the impugned period along with copies of agreement. The ONGC submitted a list including name of the appellant and payment particulars along with work order allotted to the appellant.
On through verification of the above said list, it was observed that the said service provider rendered the services in the civil constructions taken place in the different drilling Oil Fields belonged to M/s. ONGC. The show cause alleges that the services rendered by the appellant against the work orders during the period 2005-06 was covered under the category of commercial or industrial construction services and service liability works out to Rs.6,54,635/-.
On the basis of the said communication, a show cause notice was issued to the appellant on 30.05.2007 to demand service tax from the appellant which they have recovered form M/s. ONGC. The matter was adjudicated, demand of service tax was confirmed.
The Counsel for the appellant submitted that being old records the appellant is not able to ascertain the documents certifying that the they have not received any service tax from M/s. ONGC for the work executed during the impugned period and although the work order is inclusive tax, but there was no intent to evade payment of duty by the appellant.
A Coram comprising Ashok Jindal, Judicial Member and K Anpazhakan, Technical Member observed that “We hold that the appellant is liable to service tax for the impugned period along with interest. As it cannot be ascertained from the documents placed before us whether the appellant has deliberately not paid the service tax to the respondent during the impugned period, in those circumstances by giving the benefit of section 80 of the Finance Act, 1994, we hold that no penalty is imposable on the appellant.”
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